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Articles 1 - 17 of 17
Full-Text Articles in Law
A Hague Parallel Proceedings Convention: Architecture And Features, Paul Herrup, Ronald A. Brand
A Hague Parallel Proceedings Convention: Architecture And Features, Paul Herrup, Ronald A. Brand
Articles
In Paul Herrup and Ronald A. Brand, A Hague Convention on Parallel Proceedings, 63 Harvard International Law Journal Online 1(2022), available at https://harvardilj.org/2022/02/a-hague-convention-on-parallel-proceedings/ and https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3894502, we argued that the Hague Conference on Private International Law should not undertake a project to require or prohibit exercise of original jurisdiction in national courts. Rather, the goal of current efforts should be to improve the concentration of parallel litigation in a “better forum,” in order to achieve efficient and complete resolution of disputes in transnational litigation. The Hague Conference is now taking this path. As the Experts Group and Working Group …
Snapback, Version 2.0: The Best Solution To The Problem Of Snap Removal, Arthur D. Hellman
Snapback, Version 2.0: The Best Solution To The Problem Of Snap Removal, Arthur D. Hellman
Testimony
The forum defendant rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Pointing to the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) does not bar removal of a diversity action if a citizen of the forum state has been joined as a defendant but has not yet been served. The stratagem of removing before service to avoid the prohibition of § 1441(b)(2) …
Snapback! A Narrowly Tailored Legislative Solution To The Problem Of Snap Removal, Arthur D. Hellman
Snapback! A Narrowly Tailored Legislative Solution To The Problem Of Snap Removal, Arthur D. Hellman
Testimony
“Snap removal” is a stratagem used by defendants in civil litigation as an end run around the forum defendant rule. That rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Focusing on the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) allows removal of a diversity action when a citizen of the forum state has been joined as a defendant but has not …
Are Literary Agents (Really) Fiduciaries?, Jacqueline Lipton
Are Literary Agents (Really) Fiduciaries?, Jacqueline Lipton
Articles
2018 was a big year for “bad agents” in the publishing world. In July, children’s literature agent Danielle Smith was exposed for lying to her clients about submissions and publication offers. In December, major literary agency Donadio & Olson, which represented a number of bestselling authors, including Chuck Palahnuik (Fight Club), filed for bankruptcy in the wake of an accounting scandal involving their bookkeeper, Darin Webb. Webb had embezzled over $3 million of client funds. Around the same time, Australian literary agent Selwa Anthony lost a battle in the New South Wales Supreme Court involving royalties she owed to her …
A First Look At The Proposed 'Fraudulent Joinder Prevention Act Of 2015', Arthur D. Hellman
A First Look At The Proposed 'Fraudulent Joinder Prevention Act Of 2015', Arthur D. Hellman
Testimony
Almost half a century ago, the American Law Institute observed, “The most marked abuse has been joinder of a party of the same citizenship as plaintiff in order to defeat removal on the basis of diversity jurisdiction. Such tactics have led to much litigation, largely futile, on the question of fraudulent joinder.” Over the last half century, the volume of litigation on this question has only increased. In response, Congress is now actively considering legislation to address the problem of fraudulent joinder.
The bill is H.R. 3624, the “Fraudulent Joinder Prevention Act of 2015” (FJPA). The FJPA seeks to prevent …
Tortifying Retaliation: Protected Activity At The Intersection Of Fault, Duty, And Causation, Deborah L. Brake
Tortifying Retaliation: Protected Activity At The Intersection Of Fault, Duty, And Causation, Deborah L. Brake
Articles
In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court broke its string of plaintiff victories in the eight retaliation cases it has decided since 2005. In its 2013 decision in that case, the Court rejected a mixed motive framework for Title VII’s retaliation provision, a part of the statute that Congress did not amend in 1991 when it adopted the motivating factor standard for proving discrimination under Title VII. For help construing what “because of” means in the retaliation claim, the Court looked to tort law, which it read as requiring plaintiffs to prove but-for causation …
Future Claimants And The Quest For Global Peace, Rhonda Wasserman
Future Claimants And The Quest For Global Peace, Rhonda Wasserman
Articles
n the mass tort context, the defendant typically seeks to resolve all of the claims against it in one fell swoop. But the defendant’s interest in global peace is often unattainable in cases involving future claimants – those individuals who have already been exposed to a toxic material or defective product, but whose injuries have not yet manifested sufficiently to support a claim or motivate them to pursue it. The class action vehicle cannot be used because it is impossible to provide reasonable notice and adequate representation to future claimants. Likewise, non-class aggregate settlements cannot be deployed because future claimants …
Mass Torts And Universal Jurisdiction, Vivian Grosswald Curran
Mass Torts And Universal Jurisdiction, Vivian Grosswald Curran
Articles
The technologies of the present era mean that injuries have become more massive in dimension. Mass torts affect greater numbers of people and larger geographical areas. Consequently, they can cross borders, affecting the populations of multiple countries. One of the two mechanisms in tort law for remedying mass catastrophes. restricted to cases involving jus cogens violations (namely, violations of human rights so grave as to be against international customary law, or the "law of nations"), is universal jurisdiction pursuant to the Alien Tort Statute (ATS).
Despite the distinctive official restriction of universal jurisdiction to the criminal law domain in civilian …
Veil-Piercing Unbound, Peter B. Oh
Veil-Piercing Unbound, Peter B. Oh
Articles
Veil-piercing is an equitable remedy. This simple insight has been lost over time. What started as a means for corporate creditors to reach into the personal assets of a shareholder has devolved into a doctrinal black hole. Courts apply an expansive list of amorphous factors, attenuated from the underlying harm, that engenders under-inclusive, unprincipled, and unpredictable results for entrepreneurs, litigants, and scholars alike.
Veil-piercing is misapplied because it is misconceived. The orthodox approach is to view veil-piercing as an exception to limited liability that is justified potentially only when the latter is not, a path that invariably leads to examining …
Remarks On The Gjil Symposium On Corporate Responsibility And The Alien Tort Statute, Vivian Grosswald Curran
Remarks On The Gjil Symposium On Corporate Responsibility And The Alien Tort Statute, Vivian Grosswald Curran
Articles
The following essay is a summary of remarks I delivered at the symposium on corporate responsibility and the Alien Tort Statute held at Georgetown Law School after the first Kiobel v. Royal Dutch Petroleum Co. Supreme Court oral argument. My remarks addressed the importance of considering foreign national law when judging the meaning of universal civil jurisdiction, and, implicitly, the inextricability of domestic from international law matters.
The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen
The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen
Articles
This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in …
Veil-Piercing, Peter B. Oh
Veil-Piercing, Peter B. Oh
Articles
From its inception veil-piercing has been a scourge on corporate law. Exactly when the veil of limited liability can and will be circumvented to reach into a shareholder’s own assets has befuddled courts, litigants, and scholars alike. And the doctrine has been bedeviled by empirical evidence of a chasm between the theory and practice of veil-piercing; notably, veil-piercing claims inexplicably seem to prevail more often in Contract than Tort, a finding that flouts the engrained distinction between voluntary and involuntary creditors.
With a dataset of 2908 cases from 1658 to 2006 this study presents the most comprehensive portrait of veil-piercing …
'We, The Paparazzi': Developing A Privacy Paradigm For Digital Video, Jacqueline D. Lipton
'We, The Paparazzi': Developing A Privacy Paradigm For Digital Video, Jacqueline D. Lipton
Articles
In January 2009, the Camera Phone Predator Alert bill was introduced into Congress. It raised serious concerns about privacy rights in the face of digital video technology. In so doing, it brought to light a worrying gap in current privacy regulation - the lack of rules relating to digital video privacy. To date, digital privacy regulation has focused on text records that contain personal data. Little attention has been paid to privacy in video files that may portray individuals in inappropriate contexts, or in an unflattering or embarrassing light. As digital video technology, including inexpensive cellphone cameras, is now becoming …
Globalization, Legal Transnationalization And Crimes Against Humanity: The Lipietz Case, Vivian Grosswald Curran
Globalization, Legal Transnationalization And Crimes Against Humanity: The Lipietz Case, Vivian Grosswald Curran
Articles
Decided in June, 2006, the Lipietz case marks the unofficial entry into the French legal system of a tort action for complicity in crimes against humanity. It both departs from prior, established French law and reflects numerous mechanisms by which national law is transnationalizing. The case illustrates visible, invisible, substantive and methodological changes that globalization is producing as law's transnationalization changes national law. It also suggests some of the difficulties national legal systems face as their transnationalization produces legal change at a rate that outpaces the national capacity for efficient adaptation. The challenges illustrated by Lipietz, characteristic of globalization, include …
Brandeis & Warren's 'The Right To Privacy And The Birth Of The Right To Privacy', Ben Bratman
Brandeis & Warren's 'The Right To Privacy And The Birth Of The Right To Privacy', Ben Bratman
Articles
Privacy law and conceptions of a right to privacy have, of course, evolved considerably since 1890 when future Supreme Court Justice Louis Brandeis and Boston attorney Samuel Warren penned their now ageless article, The Right to Privacy, 4 Harv. L. Rev. 193, in which they argued the law should recognize such a right and impose liability in tort for intrusions on it. But quite apart from any argument about how attenuated the link might be between Brandeis and Warren's specific proposals and the current state of privacy law, is it fair to say, as so many scholars and judges repeatedly …
Evidence, Roslyn M. Litman
Evidence, Roslyn M. Litman
Scholarship
This article is not intended to constitute a comprehensive review of all evidence cases decided in Pennsylvania in the past ten years. The cases selected, of necessity, have been limited. They have been chosen because they affect either a field of special interest or one of special confusion. Cases dealing with applications of the parol evidence rule and with constitutional issues in criminal prosecutions have been omitted entirely because they are covered elsewhere in this Survey.
Sex, Society And Sophistry, Roslyn M. Litman, Claire B. Mcdermott
Sex, Society And Sophistry, Roslyn M. Litman, Claire B. Mcdermott
Scholarship
This note proposes a reconsideration of the soundness of the theories relied upon by the courts m denying the right of a wife to sue for loss of consortium caused by defendant's negligent conduct toward the husband. While there may be other solutions to the problems involved in actions concerning marital rights, it is intended here only to emphasize the consistently poor reasoning prevalent m the courts today upon which they base their dental to the wife.